NY Bar Exam All NY Subjects Questions
and Answers
What are the four forms of authority? - ANS-Actual Express: P tells A directly that A can
do a task
Actual Implied: A reasonably believes P has given A the authority
Inherent: P, a pizza shop owner, tells A to deliver a pizza to X. A has the inherent
authority to take the pizza from the pizzeria (it is not tresspass), because it is a
necessary task to complete the delivery.
Apparent: A third party relies on the appearance of agency when dealing with A
What consent is needed to create an agency relationship? - ANS-Both the principal and
the agent must consent
What are the three ingredients of an agency relationship? - ANS-Assent, Benefit, and
Control
What is ratification? - ANS-When P ratifies an unauthorized transaction by A, P
becomes bound
When is an agent liable in contract? - ANS-When the principal is undisclosed, either
partially or fully. Partially: existence is known, but identity is not.
What is the difference between an "exclusive" and a "nonexclusive" broker's contract -
ANS-Exclusive: if anyone (including owner) produces a buyer who is ready, willing, and
able to buy, broker gets commission
Nonexclusive: if the broker produces a buyer who is ready, willing, and able to buy
Can a non-licensed broker enforce a claim for commission? - ANS-No
When is a principal liable for the torts of its agent? - ANS-Employer-Employee
Relationship
AND
Conduct is within scope of the employment
What are the two exceptions for tort liability of a principal when there is no employment
relationship? - ANS-(1) Inherently dangerous activities
,OR
(2) nondelegable duties
-construction workers
-owners of land
-common carriers
What is the difference between a frolic and a detour? - ANS-Frolic: substantial
departure from employment
(2) Detour: small side trip that does not erase liability
When is an employer liable for intentional torts? - ANS-(1) Force is authorized (bouncer)
(2) Promotion of employer's business (hires thugs to beatup picketers)
(3) friction is inherent (bill collection)
What if an employee trip has both a personal and a business purpose? - ANS-The
business purpose is sufficient. Multi-purpose trips are still within the scope of
employment
Is commuting within the scope of employment? - ANS-No
What are the Neumeier Principles? - ANS-Harm occurs in State Y
(1) P and D are from same place, apply that place's law
(2) One party is from Y, and the law in Y would be beneficial to their side. Apply Y.
(3) any other case: Apply Y unless
-forum has an interest
-would not impair "multi-state system"
-would not produce "great uncertainty" for litigants (public policy exception)
What is the classical choice of law approach? - ANS-Lex Loci Delicti. Apply the law
where the transaction took place.
What is the difference between "conduct" laws and "damages" laws? - ANS-(1)
Damages, apply Neumeier (eg guest statute)
(2) Conduct, apply the place of the harm always (eg speed limit)
What is interest analysis? - ANS-The choice of law method that applies the state law
from the state that has "the greatest interest" in the outcome.
Step #1: Is there a false or true conflict?
False conflict: only one state has an interest
,True conflict: both states have an interest
Step #2:
False conflict: apply the law from the state that has an interest
True conflict: if the forum has an interest, it will apply its own law
Does NY have a dram shop law? - ANS-Yes, NY has a dram shop law. This means a
bartender may be liable for overserving a patron in the form of vicarious liability for the
patron's harms.
In a conflict of laws situation, NY courts should not apply dram shop liability to an out of
state defendant from a state where there is no dramshop law. It is unlikely that the out-
of-state bartender would adjust his conduct in conformance with the dramshop law in
this case.
A NY plaintiff purchases a ticket and then boards an aircraft from NY to MA. The plane
crashed in Massachusetts. The plaintiff's family brings a wrongful death action.
NY has an unlimited recovery for wrongful death
MA has a $15,000 damages cap for wrongful death
What law applies? - ANS-Here, while the vested rights approach would point to MA law
as the situs of the injury, this approach is no longer followed in NY.
NY would apply interest analysis governed by Neumeier principles.
Here, while MA arguably has an interest, NY also has a legitimate interest in ensuring
its domicilliaries can get a substantial wrongful death recovery. Therefore NY law
applies
What are the three exceptions to an express choice of law provision in a contract? -
ANS-(1) Public policy of an interested state is contrary to the choice presented, and that
choice of law has no interest
(2) No reasonable basis for choice: "no substantional relationship to parties of
transaction"
(3) Lack of "true consent" by one party
What are the $ minimums for the NY General Obligations Law? - ANS-$250,000 means
that a NY choice of law clause is valid regardless of any connection to NY.
What law governs automobile insurance policies? - ANS-The law of the state where the
policy was written
, NY unlicensed real estate broker alleges an oral "finder's fee" agreement from a NJ
corporation. NJ corporation has many NY contacts. The oral agreement was alleged to
have taken place in NJ.
The broker sues in NY court to enforce the fee. NY law does not allow oral contracts on
these facts; NJ law does. What choice of law? - ANS-NY. NY has a strong interest in
ensuring that, as an international center of commerce, principals can count on the fact
that they will not be held accountable for fraudulent or unfounded claims.
What are three fallback exceptions to applying the law of a foreign jurisdiction? - ANS-
(1) contrary to public policy (rare)
(2) foreign law is merely procedural
(3) foreign law is a penal or tax law
What is the choice of law for real estate? - ANS-The law of the situs (vested rights)
What is the choice of law for inter vivos transactions of personal property? - ANS-Law of
situs (vested rights)
What choice of law for personal property passed via death? - ANS-Law of the
decedent's domicile at the time of his death
What choice of law for real property passed via death? - ANS-Law of situs
What is the principle of comity? - ANS-A foreign country judgment will be enforced if
(1) Foreign court had jurisdiction
(2) Fair procedures were used in adjudicating case
Court is entitled to use value judgments to resolve the issues
What are the rules pertaining to NY real estate agents? - ANS-(1) Entitled to
commission upon furnishing a ready willing and able buyer
(2) Contract must be in writing UNLESS licensed attorney or real estate broker (then
oral is ok)
What are the rules pertaining to options without consideration? - ANS-(1) Multistate:
option is invalid; option contract must be supported by consideration
(2) UCC: "Firm offer" provision. Signed writing by a merchant for up to 3 months
(3) NY: Writing/Signed + states "irrevocable", the offer is not revocable during time
stated
and Answers
What are the four forms of authority? - ANS-Actual Express: P tells A directly that A can
do a task
Actual Implied: A reasonably believes P has given A the authority
Inherent: P, a pizza shop owner, tells A to deliver a pizza to X. A has the inherent
authority to take the pizza from the pizzeria (it is not tresspass), because it is a
necessary task to complete the delivery.
Apparent: A third party relies on the appearance of agency when dealing with A
What consent is needed to create an agency relationship? - ANS-Both the principal and
the agent must consent
What are the three ingredients of an agency relationship? - ANS-Assent, Benefit, and
Control
What is ratification? - ANS-When P ratifies an unauthorized transaction by A, P
becomes bound
When is an agent liable in contract? - ANS-When the principal is undisclosed, either
partially or fully. Partially: existence is known, but identity is not.
What is the difference between an "exclusive" and a "nonexclusive" broker's contract -
ANS-Exclusive: if anyone (including owner) produces a buyer who is ready, willing, and
able to buy, broker gets commission
Nonexclusive: if the broker produces a buyer who is ready, willing, and able to buy
Can a non-licensed broker enforce a claim for commission? - ANS-No
When is a principal liable for the torts of its agent? - ANS-Employer-Employee
Relationship
AND
Conduct is within scope of the employment
What are the two exceptions for tort liability of a principal when there is no employment
relationship? - ANS-(1) Inherently dangerous activities
,OR
(2) nondelegable duties
-construction workers
-owners of land
-common carriers
What is the difference between a frolic and a detour? - ANS-Frolic: substantial
departure from employment
(2) Detour: small side trip that does not erase liability
When is an employer liable for intentional torts? - ANS-(1) Force is authorized (bouncer)
(2) Promotion of employer's business (hires thugs to beatup picketers)
(3) friction is inherent (bill collection)
What if an employee trip has both a personal and a business purpose? - ANS-The
business purpose is sufficient. Multi-purpose trips are still within the scope of
employment
Is commuting within the scope of employment? - ANS-No
What are the Neumeier Principles? - ANS-Harm occurs in State Y
(1) P and D are from same place, apply that place's law
(2) One party is from Y, and the law in Y would be beneficial to their side. Apply Y.
(3) any other case: Apply Y unless
-forum has an interest
-would not impair "multi-state system"
-would not produce "great uncertainty" for litigants (public policy exception)
What is the classical choice of law approach? - ANS-Lex Loci Delicti. Apply the law
where the transaction took place.
What is the difference between "conduct" laws and "damages" laws? - ANS-(1)
Damages, apply Neumeier (eg guest statute)
(2) Conduct, apply the place of the harm always (eg speed limit)
What is interest analysis? - ANS-The choice of law method that applies the state law
from the state that has "the greatest interest" in the outcome.
Step #1: Is there a false or true conflict?
False conflict: only one state has an interest
,True conflict: both states have an interest
Step #2:
False conflict: apply the law from the state that has an interest
True conflict: if the forum has an interest, it will apply its own law
Does NY have a dram shop law? - ANS-Yes, NY has a dram shop law. This means a
bartender may be liable for overserving a patron in the form of vicarious liability for the
patron's harms.
In a conflict of laws situation, NY courts should not apply dram shop liability to an out of
state defendant from a state where there is no dramshop law. It is unlikely that the out-
of-state bartender would adjust his conduct in conformance with the dramshop law in
this case.
A NY plaintiff purchases a ticket and then boards an aircraft from NY to MA. The plane
crashed in Massachusetts. The plaintiff's family brings a wrongful death action.
NY has an unlimited recovery for wrongful death
MA has a $15,000 damages cap for wrongful death
What law applies? - ANS-Here, while the vested rights approach would point to MA law
as the situs of the injury, this approach is no longer followed in NY.
NY would apply interest analysis governed by Neumeier principles.
Here, while MA arguably has an interest, NY also has a legitimate interest in ensuring
its domicilliaries can get a substantial wrongful death recovery. Therefore NY law
applies
What are the three exceptions to an express choice of law provision in a contract? -
ANS-(1) Public policy of an interested state is contrary to the choice presented, and that
choice of law has no interest
(2) No reasonable basis for choice: "no substantional relationship to parties of
transaction"
(3) Lack of "true consent" by one party
What are the $ minimums for the NY General Obligations Law? - ANS-$250,000 means
that a NY choice of law clause is valid regardless of any connection to NY.
What law governs automobile insurance policies? - ANS-The law of the state where the
policy was written
, NY unlicensed real estate broker alleges an oral "finder's fee" agreement from a NJ
corporation. NJ corporation has many NY contacts. The oral agreement was alleged to
have taken place in NJ.
The broker sues in NY court to enforce the fee. NY law does not allow oral contracts on
these facts; NJ law does. What choice of law? - ANS-NY. NY has a strong interest in
ensuring that, as an international center of commerce, principals can count on the fact
that they will not be held accountable for fraudulent or unfounded claims.
What are three fallback exceptions to applying the law of a foreign jurisdiction? - ANS-
(1) contrary to public policy (rare)
(2) foreign law is merely procedural
(3) foreign law is a penal or tax law
What is the choice of law for real estate? - ANS-The law of the situs (vested rights)
What is the choice of law for inter vivos transactions of personal property? - ANS-Law of
situs (vested rights)
What choice of law for personal property passed via death? - ANS-Law of the
decedent's domicile at the time of his death
What choice of law for real property passed via death? - ANS-Law of situs
What is the principle of comity? - ANS-A foreign country judgment will be enforced if
(1) Foreign court had jurisdiction
(2) Fair procedures were used in adjudicating case
Court is entitled to use value judgments to resolve the issues
What are the rules pertaining to NY real estate agents? - ANS-(1) Entitled to
commission upon furnishing a ready willing and able buyer
(2) Contract must be in writing UNLESS licensed attorney or real estate broker (then
oral is ok)
What are the rules pertaining to options without consideration? - ANS-(1) Multistate:
option is invalid; option contract must be supported by consideration
(2) UCC: "Firm offer" provision. Signed writing by a merchant for up to 3 months
(3) NY: Writing/Signed + states "irrevocable", the offer is not revocable during time
stated
